Third District Court of Appeal

State of Florida 

Opinion filed January 19, 2022.

Not final until disposition of timely filed motion for rehearing.

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No. 3D20-1371

Lower Tribunal No. 18-5326

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BMC Southwood LLC, et al.,

Appellants,

vs.

Bobby Monochelli, et al.,

Appellees.

An Appeal from a non-final order from the Circuit Court for Miami-Dade 

County, Valerie R. Manno Schurr, Judge.

Mrachek, Fitzgerald, Rose, Konopka, Thomas & Weiss, P.A., and 

Manuel Farach (West Palm Beach); Moris & Associates and Alberto N. 

Moris, for appellants.

Cooke Carbonell LLP and Robert F. Cooke and Arianna M. Mendez, 

for appellees.

Before EMAS, MILLER and LOBREE, JJ.

PER CURIAM.

In this post-condominium termination case, Appellants challenge the 
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trial court’s non-final order denying their motion to dismiss the operative 

complaint alleging counts for civil conspiracy, violation of section 718.303, 

Florida Statutes, breach of fiduciary duty, and fraud. They argue that 

dismissal of the complaint is required because the counts it frames constitute 

disputes within the meaning of section 718.1255(1)(c), Florida Statutes, and 

Appellees failed to timely initiate mandatory non-binding arbitration, as 

required by sections 718.117(16) and 718.1255(4), Florida Statutes, prior to 

filing of this action. Appellants further assert that the first three counts 

alleged against them failed to state a cause of action.

We have jurisdiction under Florida Rule of Appellate Procedure 

9.130(a)(3)(C)(iv) to review that portion of the challenged order determining 

a party’s entitlement to arbitration. See also CWELT-2008 Series 1045 LLC 

v. Park Gardens Ass’n, 305 So. 3d 618, 619 (Fla. 3d DCA 2020) (stating that 

court had jurisdiction to review denial of motion to dismiss counterclaim for 

failure to comply with mandatory arbitration provision of section 

718.1255(4)). Our standard of review is de novo. See id. at 620 n.1. At this 

stage of the proceedings, however, our review is limited to the factual 

allegations within the four corners of the operative complaint, which we must 

accept as true. Palisades Owners’ Ass’n v. Browning, 247 So. 3d 589, 591 

(Fla. 1st DCA 2018).
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In determining whether a plaintiff’s claims are subject to mandatory 

non-binding arbitration, we look to the gravamen of the complaint and the 

relief sought, as opposed to how the claims are labeled. See Cornerstone 

417, LLC v. Cornerstone Condo. Ass’n, 300 So. 3d 1262, 1266 (Fla. 5th DCA 

2020); see also Villorin v. Vill. of Kings Creek Condo. Ass’n, 789 So. 2d 1157, 

1159 (Fla. 3d DCA 2001). We agree with our sister court’s decision in 

Cornerstone for the broader proposition that the doctrine of exhaustion of 

remedies applies in a condominium-related disagreement where a claimant 

seeks money damages for undervaluation of its unit during termination of a 

condominium pursuant to a plan of termination, and, in effect, disputes “the 

fairness and reasonableness of the apportionment of the proceeds” from the 

sale among the unit owners. 300 So. 3d at 1266 (quoting § 718.117(16)). 

However, because careful review of the complaint before us revealed 

allegations involving disagreements which, at least arguably, do not fall 

within the statutory definition of a dispute that is subject to mandatory nonbinding arbitration pursuant to section 718.1255(1), we find that a dismissal 

of this action is not warranted at this juncture. See Villorin, 789 So. 2d at 

1159 (finding that disagreement between parties was not subject to 

mandatory non-binding arbitration because gravamen of complaint was 

validity of special assessment and relief requested was its refund); Browning, 
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247 So. 3d at 591 (accepting well-pleaded allegations as true and finding 

that, because complaint alleged breach of fiduciary duties by one or more 

directors, claimant was not required to petition for nonbinding arbitration as 

condition precedent to bringing suit).

As to the portion of the challenged order denying Appellants’ motion to 

dismiss for failure to state a cause of action, we lack jurisdiction to review it, 

and “conclude that the aspect of the order . . . is not of such an extraordinary 

nature as to justify certiorari review.” Phuong v. Mina, 308 So. 3d 1135, 1135-

36 (Fla. 5th DCA 2020).

Affirmed in part; dismissed in part.